7 Chapter Seven: Dangerous Objects and Substances

Sections in Chapter 7

Drug Offenses: The Meaning of “Possession”
Drug Offenses: The Relevance of Type and Quantity
Gun Offenses
Guns, Drugs, and Mass Incarceration


Many crimes are defined with reference to some prohibited (or highly regulated) object or substance. The two most familiar examples, and the focus of this chapter, are drug offenses and gun offenses. The simplest form of a prohibited-object offense is possession—possession of cocaine, for example—but the concept of possession is sometimes complicated, as explored in this chapter. Another common form of prohibited-object offenses combines possession with the intent to distribute. Other statutes criminalize the actual distribution, or the manufacture, transportation, or storage of prohibited substances or objects. Criminal regulations of drugs and guns generate an enormous number of cases on criminal court dockets. Indeed, more Americans are arrested for drug crimes than for any other general category of crimes, such as violent offenses or property crimes. Gun crimes do not generate nearly as large a share of the criminal court docket as drug offenses do, but they are a significant source of both criminal convictions and eventual prison sentences. And gun enhancements—an increase in the penalty for some other criminal conduct based on the defendant’s possession of a gun—are an important contributing factor to the size of America’s prisoner population.

The rationale for the criminalization of guns or drugs may seem self-evident: possession of the object is thought to be dangerous, and therefore the government wishes to deter possession. But note that this category of criminal law imposes punishment for the creation of a risk, rather than for the actual materialization of some harm. No one needs to experience adverse effects of drug use, or even to use drugs at all, for prosecutors to establish an offense of drug possession or distribution. Similarly, the weapons offenses addressed in this chapter typically involve guns that don’t go off, but are seen as sufficiently risky that mere possession is criminalized. If a gun does go off – if it is used to shoot someone – criminal law typically addresses that actual harm through assault or homicide law. Thus, this chapter gives us the opportunity to think about the decision to criminalize risky conduct without requiring proof of an actual injury. How should policymakers determine that a given object or substance is dangerous enough to criminalize? What kinds of factors – such as empirical evidence, moral judgments, or political considerations – actually do influence these criminalization decisions?

Another distinctive feature of the crimes addressed in this chapter is that they typically involve consensual conduct. That is, the person who possesses drugs or a gun has often obtained the contraband by choice, from a willing seller; the person who distributes the prohibited object is usually doing so to a willing purchaser. The crimes addressed in this chapter are often called “victimless” crimes, in the sense that there is usually not a specific person who is directly injured by the prohibited activity and likely to complain to law enforcement about it. To be sure, many would argue that drug use and distribution, or widespread gun possession, do have indirect victims in that these practices destabilize communities and contribute to higher levels of violence. This chapter offers some background data on the connections between drugs and violence, and between guns and violence.

The notion that some objects are dangerous enough to be criminally regulated is an old idea. Various forms of weapons and liquor offenses have existed in state law since the earliest days of the American republic. But the experiment with nationwide alcohol prohibition early in the twentieth century proved very important to the later trajectory of American criminal law. Some scholars argue that we cannot fully understand the “War on Drugs” or the broader “War on Crime” without appreciating the ways those massive criminalization and enforcement initiatives were made possible by “the War on Alcohol.” See Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (2016). The Eighteenth Amendment, which was ratified in 1919 and took effect in 1920, provided that “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” Again, many state and local laws had regulated or outright prohibited alcohol before 1919, but Prohibition was a nationwide ban, and it was understood to be such a novel use of federal authority that it required a constitutional amendment. President Herbert Hoover famously called Prohibition a “noble experiment,” but by most accounts, the experiment was a failure. Consumption of alcohol decreased initially, then resumed and even increased. The criminalization of alcohol production and distribution created black markets and encouraged the development of organized crime. Liquor laws were selectively enforced, often along racial lines. The inconsistent enforcement of these laws was one of the major themes of critiques of Prohibition that led to the abandonment of the “noble experiment” and the repeal of the Eighteenth Amendment in 1933.

But as one historian puts it, “Prohibition is often described as a dead letter, but it was an extremely lively corpse.” Lawrence Friedman, Crime and Punishment in American History 266 (1993). During Prohibition, extensive resources were devoted to the expansion of federal law enforcement capacities and, to a lesser degree, state law enforcement. Many of the institutions that are necessary for mass incarceration—the policing and surveillance capacities, the prosecuting agencies, the prisons—originated or were greatly expanded during Prohibition. Historian Lisa McGirr argues that Prohibition created both the institutional capacity and a moral precedent for the War on Drugs: “[In] today’s colossal penal state, the most consequential harvest of the war on alcohol was the uniquely American cross-breeding of prohibitionary and punitive approaches toward illicit recreational narcotic substances…. The war against drugs was a smaller but longer-lived effort birthed simultaneously.” McGirr, The War on Alcohol, at 250.

One feature of alcohol prohibition is also characteristic of contemporary drug and gun criminalization: the underlying conduct is fairly common, so common that law enforcement could not hope to detect and apprehend all who engage in it. At the same time, these prohibited-object offenses are usually relatively easy to prosecute. Once law enforcement seizes the prohibited object from a defendant, it is not difficult to obtain a conviction. The seized contraband, along with police testimony about how they obtained it, will usually be sufficient to establish the elements of the offense. Together, the frequency of violation and ease of prosecution for crimes of prohibition create expansive enforcement discretion: which drug users or sellers, or which gun carriers, will be subject to criminal interventions? Recall United States v. Armstrong in Chapter Three, in which the Supreme Court considered but ultimately rejected a claim that federal prosecutors were enforcing drug laws selectively on the basis of race. Moreover, since these “victimless” crimes are often detected through sting operations or other undercover efforts, enforcement officials play a significant role in shaping factual details that affect a defendant’s criminal liability: what quantity of drugs does the undercover officer seek to buy? How many transactions with an undercover agent are staged before an arrest, and where do those transactions take place?

Patterns of racial disparity can be found in the enforcement of all the categories of crimes discussed in this book, but the patterns are particularly striking, and very extensively documented, with regard to drug offenses. Some scholars point to drug offenses as the most important source of racial disparities in mass incarceration. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in an Age of Colorblindness (2010). Others have questioned whether the War on Drugs is the central factor driving mass incarceration, noting that more people are imprisoned for “violent” offenses than for drug offenses. See, e.g., John Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017). The issue is complicated: we cannot fully measure the impact of drug criminalization by looking at prison sentences for drug offenses. The majority of drug offense convictions lead to a sentence other than prison time, such as probation or community supervision, but the fact of a prior conviction (even one not punished with prison time) can make it more likely that a given person will be sentenced to prison for a subsequent offense. That is, stark racial disparities in one area of criminal law can generate racial disparities in another area. We seem to see this with regard to gun possession offenses, where there is considerable evidence that “people of color bear the brunt of enforcement.” Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2194 (2016). Unlike drug laws, which often categorically prohibit possession of a given substance by any member of the general public, a typical gun prohibition identifies certain categories of persons—such as those with felony convictions—who are barred from possessing guns. If persons of color are overrepresented among all persons with felony convictions, in part because of racial bias in enforcement of drug laws, then we should not be surprised to see persons of color overrepresented among those arrested for and convicted of weapons offenses. Still further disparity may be produced by enforcement choices with regard to gun laws, as this chapter will explore. The last section of this chapter looks in more detail at the role of drug and gun offenses in producing mass incarceration.

By the end of this chapter, you should understand the basic concepts used to criminalize dangerous objects and substances. You will learn legal definitions of possession and constructive possession, and the way that the legal concept of possession interacts with mental state requirements. In that regard, the cases in this chapter will help you further expand your understanding of mens rea analysis in criminal law. You will also see examples of ways that distribution and transportation (in the drug context) or various forms of “use” (in the gun context) are criminalized.

This chapter, like the rest of the book, uses appellate judicial opinions to teach key points of law. Earlier chapters have already discussed ways in which appellate caselaw can be misleading, and here it’s especially important to keep that point in mind. The vast majority of drug and gun prosecutions are resolved with a guilty plea and never lead to appellate review. Even among the tiny fraction of drug and gun cases that do eventually gain appellate review, the issue on appeal is much more likely to concern specific enforcement actions, as when a defendant claims that the police discovered the contraband through an unconstitutional search or seizure, than a question about the statutory definition of the offense. The judicial scrutiny of defendants’ mental states that you see in the cases in this chapter is a useful teaching tool, but it is atypical in most areas of criminal law, and it is especially atypical within the world of gun and drug prosecutions. As always, read judicial opinions carefully but put them in context; be sure to read the surrounding notes carefully to gain a more complete understanding of drug and gun law in practice.

Drug Offenses: The Meaning of “Possession”

Louisiana Revised Statutes § 40:966(C). Possession [of narcotics].

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner [or as otherwise authorized…]

STATE of Louisiana


Walter BOOTH

Court of Appeal of Louisiana, Fourth Circuit
745 So.2d 737

Oct. 20, 1999

MURRAY, Judge.

… Defendant Walter Booth, Jr., was charged by bill of information with possession of heroin, to which he pled not guilty. A twelve-person jury found him guilty as charged on February 19, 1998 [and] he was sentenced to five years at hard labor….

New Orleans Police Officer Travis McCabe testified that on October 20, 1997, he conducted an investigation of 2309 Sixth Street, Apartment 2, after he and Sergeant Steven Gaudet received information from a confidential informant. The officers later applied for and received a search warrant for the premises. He and Sgt. Gaudet, along with two other officers and a dog trained to search for drugs, executed the warrant [early in the morning on October 21, 1997]. [Mr. Booth and Gail Varnado were both at the apartment at the time it was searched.] Officer McCabe described the apartment as small, consisting of one bedroom, one bathroom, a living room, and a kitchen. The search dog located narcotics inside a wall-mounted heater. Officer McCabe opened the vent on the bottom and found a plastic package containing approximately twenty-seven aluminum foil packages of heroin. The officers also discovered on top of a curio cabinet, a large felt hat containing a syringe, a long piece of rubber, and a small plastic bag containing five additional small foil packages of heroin. Officer McCabe also recovered an Entergy electric bill in Mr. Booth’s name, and a letter from a religious organization addressed to both him and Ms. Varnado, both of which were addressed to 2309 Sixth Street, Apartment “D.” At that point, Mr. Booth and Ms. Varnado were advised of their rights and arrested.

On cross-examination, Officer McCabe admitted that none of the drugs was in plain view, and that initially the focus of the police investigation was Ms. Varnado. He said he had occasion to watch the apartment from a distance, and witnessed an informant make a purchase from Ms. Varnado with a marked twenty-dollar bill, although this marked twenty-dollar bill was not found during the search of the apartment….

Sergeant Steve Gaudet explained that he remained in the area of the apartment complex while Officer McCabe went to obtain the search warrant. He detained Ms. Varnado outside of the apartment as she was leaving, and took her inside, where Mr. Booth was seated in the front room, clad only in a pair of boxer shorts. He said the wall-mounted heater where the drugs were found was next to the sofa where Mr. Booth was seated. …

Mr. Booth testified in his own behalf, and stated that on October 20 and 21, 1997, he was living at the Sixth Street address, but Ms. Varnado, whom he stated was his fiancée, was not living there. In fact, Mr. Booth had no idea where Ms. Varnado was living at that time. He had agreed only that Ms. Varnado could stay at his apartment that particular night, in the front room. Mr. Booth claimed that when police found him he was sleeping in the bedroom, and they awakened him and asked where Ms. Varnado was. He denied knowledge of any drugs in the heater or in the hat.

On cross-examination, Mr. Booth again stated that Ms. Varnado was his fiancée, but said he and she “had a legal separation…” He again denied being awake sitting in the living room when police entered the apartment. Mr. Booth said the letter addressed to Ms. Varnado found in his apartment was brought with her from her jail cell. He explained that she recently had been paroled, and was going to live with him, but they had an altercation and he put her out. He said she asked to stay in the front room for a couple of days, and that was how the letter got there. Mr. Booth admitted to a 1995 conviction for “having a gun,” a conviction for possession of marijuana, a 1975 conviction for being a convicted felon in possession of a firearm, and a conviction for armed robbery. He denied or could not recall [other] prior convictions….

… Mr. Booth claims that the evidence is insufficient to sustain his conviction.

… “In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of act could have found the defendant guilty beyond a reasonable doubt…. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted….”

La.Rev.Stat. 40:966(C) makes it unlawful for any person to knowingly or intentionally possess heroin, a controlled dangerous substance classified in Schedule I. In State v. Brady (1999), this Court stated:

To support a conviction for possession of narcotics, the State must prove that a defendant knowingly possessed narcotics. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support conviction. The mere presence of a defendant in the area where the narcotics were found is insufficient to prove constructive possession.

A person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. A person may be deemed to be in joint possession of a drug which is in the physical possession of a companion if he willfully and knowingly shares with the other the right to control it. Determination of whether a defendant had constructive possession depends on the circumstances of each case. Among the factors to consider in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are whether the defendant knew that illegal drugs were present in the area, the defendant’s relationship to the person in actual possession of the drugs, whether there is evidence of recent drug use, the defendant’s proximity to the drugs, and any evidence that the area is frequented by drug users.

Brady, 727 So.2d at 1268 [internal citations omitted].

In the instant case, police observed Ms. Varnado sell narcotics to an informant out of Mr. Booth’s apartment. She was detained and taken inside of the apartment, where she admittedly was staying. Mr. Booth admitted that Ms. Varnado was his fiancée. Accepting the testimony of Officer McCabe, Mr. Booth was in the front room when police entered. Heroin was found in a wall-mounted heater next to where Mr. Booth was seated, and more heroin and drug paraphernalia was found in a curio cabinet in the living room. A letter found in the apartment was addressed to Mr. Booth and Ms. Varnado, at the apartment in question.

Mr. Booth’s testimony conflicted with that of police officers in that he said he was sleeping in his bedroom when police entered the apartment and asked him where Ms. Varnado was. He disputed that the police took Ms. Varnado into custody outside, and brought her into the apartment when they entered. Mr. Booth denied any knowledge of the drugs in his apartment, and said his fiancée was only staying at his apartment temporarily. The jury knew that Mr. Booth had prior convictions for armed robbery, possession of marijuana, and being a convicted felon in possession of a firearm. The jury obviously did not believe that Mr. Booth was not aware of the heroin found in two locations in his apartment. The trier of fact’s determination of credibility should not to be disturbed on appeal absent an abuse of discretion.

In State v. Maresco (La.1987), police served a search warrant on an apartment where Lori Wermuth and her fiancé, Gary Weaver, resided. Wermuth was at work when the warrant was served, but Weaver and Steven Maresco were in the apartment. Police found seven pounds of marijuana packaged in large and small plastic bags in the kitchen and on the dining room table, and a vinyl bag inside of a closed trunk in the bedroom containing over six thousand Valium pills. A scale was also recovered, along with mail addressed to Wermuth. In affirming Wermuth’s conviction for possession with intent to distribute marijuana, this Court stated: “Although Lori Wermuth was not home when the warrant was executed, the marijuana was seized in her apartment…. The jury was satisfied that the State proved Wermuth … exercised sufficient control over the marijuana. Their conclusion was reasonable and there is no basis to hold otherwise.”

In the instant case, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that Mr. Booth knowingly exercised dominion and control over the heroin found in his apartment, and that all of the essential elements of the offense of possession of heroin were proven beyond a reasonable doubt….

For the foregoing reasons, we affirm Mr. Booth’s conviction….

Notes and questions on State v. Booth

  1. Consider the actus reus of possession offenses. Is possession an act? Do possession offenses violate the general requirement, discussed in Chapter Two, that criminal liability requires a voluntary act? (See State v. Alvarado and accompanying notes.) The acquisition of drugs or some other object is more easily identified as an act, but most jurisdictions don’t criminalize “buying drugs” or “acquiring drugs” as a separate offense. Instead, mere possession is the basic offense, and then there are more serious offenses such as distribution (which includes selling), manufacture, and transportation of the prohibited substance. Did Walter Booth possess drugs simply by being near them? And if so, was his conviction based on a voluntary act?
  2. Now consider the mens rea of possession offenses. Most jurisdictions address the above questions by linking possession to a specific mental state. If a defendant knowingly acquires or receives a controlled substance, or knows that a controlled substance in his control, he can be convicted of possession. This approach is reflected in the Model Penal Code’s Section 2.01, which states, “Possession is an act … if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” Here, it may be helpful to remember that criminal liability can be based on an omission, or a failure to act, in some circumstances. If there is a specific legal duty to act and a defendant fails to fulfill that duty, he or she may be criminally liable. (Omission liability is discussed briefly in Chapter Two and in more detail in Chapter Six.) One could (and courts do) characterize possession as either a knowing act or a knowing omission: either the defendant knowingly acquired the drugs (an act), or the defendant failed to “terminate his possession” even after becoming aware that he was in possession of a controlled substance.
  3. Again, the usual view is that a possession statute both prohibits knowing acquisition and creates a duty to dispossess oneself of the prohibited object if one becomes aware that the object is in one’s control. The concept of possession thus combines both act and mental state elements. Until 2021, the state of Washington was an outlier on this issue. Its courts had interpreted the state’s possession of controlled substances statute as a strict liability offense, holding that the prosecution need not prove that the defendant knew that drugs were in his possession. Thus, a commercial truck driver who entered the state with marijuana hidden in pallets on his truck could be convicted, even in the absence of any evidence that he knew the marijuana was there. But the Washington Supreme Court found the strict liability statute unconstitutional in 2021, holding that the law impermissibly criminalized “wholly innocent nonconduct” when applied to a defendant who had no knowledge of possession. State v. Blake, 481 P.3d 521 (Wash. 2021).
  4. A further wrinkle: what if a defendant is aware that she possesses a given object, but is mistaken about what the object is? What if she find a plastic bag left in the kitchen and believes that it holds baking powder, but the substance inside is really cocaine? The usual account of possession as knowing possession would require knowledge that the substance is a prohibited one. Of course, depending on the circumstances, a defendant may not be able to convince a factfinder that he or she was mistaken about the nature of the object possessed. And specific statutes may criminalize even some forms of mistaken possession. For more details, see United States v. Jewell and State v. Freeman in this chapter, and the accompanying notes for each case.
  5. Notwithstanding the formal definition of possession as knowing possession in most jurisdictions, practitioners and commentators occasionally refer to possession offenses somewhat imprecisely as strict liability offenses. The strict liability characterization arises in part because the evidence that suffices to “prove” knowledge is often minimal, so that a possession offense operates like a strict liability offense. Once contraband is found on or near your person, that evidence is itself likely to be sufficient for a criminal conviction even if as a formal matter the statute requires proof of knowledge.
  6. The Booth court refers to “actual possession,” “physical possession,” and “constructive possession.” The terms actual possession or physical possession are often used interchangeably. In one typical jury instruction, “Actual possession means a) the object is in the hand of or on the person, or b) the object is in a container in the hand or on the person, or c) the object is so close as to be within ready reach and is under the control of the person.” Fla. Std. Jury Instr. (Crim.) 10.15 (2017). For a similar instruction, see footnote 3 in State v. Donaldson in Chapter Five. As the Donaldson instruction makes clear, an object can be possessed by more than one person at a time. Thus, in the case you’ve just read, Walter Booth and Gail Varnado can each be convicted of possessing the same heroin.
  7. What factors does the Booth court identify as relevant to establishing constructive possession? Could there ever be a case in which the resident of a home was not in constructive possession of any drugs found within that home? Most of the time, the homeowner or tenant is likely to be found in constructive possession, as suggested by the Booth court’s discussion of State v. Maresco. [exclusive control v shared control] But there are occasional exceptions. In State v. Cantabrana, 921 P.2d 572 (Ct. App. Wa. 1996), a state court found that it was error to instruct a jury that constructive possession could be established simply by the defendant’s control over the premises, without showing control over the drugs themselves. In State v. Hodge, 781 So.2d 575 (Ct. App. La. 2001), a husband and wife were both prosecuted for drug offenses after their home was searched. During the search, police discovered marijuana in the husband’s pockets, in the bag of another woman present at the house, and in the pockets of a men’s jacket in a rear room. An additional bag of marijuana was found wrapped in a sweatshirt and inside a dryer in the backyard. The appellate court reversed the wife’s conviction, finding that while a rational trier of fact could have concluded that Allison Hodge knew that her husband was selling marijuana from the residence, there was insufficient evidence that Mrs. Hodge herself “exercised dominion and control” over any of the marijuana.
  8. Walter Booth had prior convictions for at least one drug offense, at least one weapon offense, and armed robbery. Are these convictions relevant to the adjudication of this heroin possession charge? What do they show? Why does the appellate court emphasize that the jury was aware of Booth’s prior convictions?
  9. There is a very close association of drugs with violence in public discourse and policy discussions. But what, precisely, is the connection? Does drug use tend to make people violent? Does drug addiction tend to make people willing to use violence to obtain drugs? Does the drug trade involve acts of violence to defend territory or avoid law enforcement? One comprehensive study has concluded that there is little evidence “to support the assumption that drugs cause violence.” Shima Baradaran, Drugs and Violence, 88 S. Cal. L. Rev. 227, 233 (2015). “[C]ourts and scholars assume that drug crime may lead to at least two forms of violence: (1) violence associated with substance intoxication, and (2) violence arising from the transportation and sale of drugs. Violence arising from the transportation and sale of drugs is significantly more common, though still less common than assumed.” Id. at 289. Defendants charged with drug offenses are less likely to commit crimes of violence than defendants charged with other categories of crime, Professor Baradaran reports. Among those in the drug trade, “drug violence is exaggerated and may be attributable to drug law enforcement and prohibition rather than drug use or the nature of the industry.” Id. at 290.
  10. How do police typically discover drug possession? In Booth, the police conducted surveillance on a home after receiving a tip from an informant. They witnessed conduct (by Gail Varnado) that led them to apply for a warrant to search the home. Most of the time, police discover drugs without needing to obtain a search warrant. Searches of individual persons and vehicles do not usually require a warrant, so long as police can identify some grounds of “reasonable suspicion,” as discussed in Chapter Three. Recall also Copenhaver in Chapter One, where a traffic stop for an expired registration led the police to investigate the driver for intoxication, and then to search the vehicle and discover contraband.
  11. Notice the court’s description of Booth’s sentence for the heroin possession offense: “five years at hard labor.” Was Booth headed off to a chain gang or other forced labor setting? “At hard labor” is partly, but only partly, a matter of terminology. In Louisiana, which is the U.S. state with the highest incarceration rate, “imprisonment at hard labor” is the standard terminology used to describe any prison sentence. (A defendant sentenced to serve “without hard labor” will be sent to a parish jail rather than a state prison.) State law does allow prisons to require prisoners to work—and some jail detainees are also required to work, which is why the “at hard labor” language is partly just a matter of legal terminology. One Louisiana sheriff made the news in 2017 when he objected to new parole laws on the grounds that the state was releasing “the ones you can work.” He explained, “In addition to the bad ones — in addition to them — they are releasing some good ones that we use every day to wash cars, to change the oil in our cars, to cook in the kitchen — to do all that where we save money.” Many other states also use the labor of prisoners; for example, California’s use of prisoners to fight forest fires has received substantial news coverage in recent years. Prisoners are typically paid some small amount for their labor, but the rates are often far below minimum wage; some jobs are paid at $0.20 / hour in Louisiana. These practices have so far survived constitutional challenges. The Thirteenth Amendment to the federal constitution declares, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…” (emphasis added). For a recent overview of compelled and underpaid labor among American prisoners, see Michelle Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019).

Check Your Understanding (7-1)

* * * * *

21 U.S.C. § 841. Prohibited acts.

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally–

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.



Charles Demore JEWELL

United States Court of Appeals, Ninth Circuit
532 F.2d 697

Feb. 27, 1976

BROWNING, Circuit Judge:

We took this case in banc to perform a simple but necessary “housekeeping” chore. The opinion in United States v. Davis (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. s 841(a)(1), as a “general intent” crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent “to manufacture, distribute, or dispense.” The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.

This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that “The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing.” We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses.

In the course of in banc consideration of this case, we have encountered another problem that divides us….

It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marijuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was false. [In a footnote, the court explained that the appellant had testified that while he was visiting Mexico, a stranger had offered to sell him marijuana, then asked him to drive a car back into the United States. Appellant agreed to drive the car back for payment of $100.]

On the other hand there was evidence from which the jury could conclude that … although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery. [From the court’s footnote: The Drug Enforcement Administration agent testified that appellant stated “he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn’t find anything, and, therefore, he assumed that the people at the border wouldn’t find anything either” (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, “Well, you know, I saw a void there, but I didn’t know what it was.” He testified that he did not investigate further….]

If the jury concluded the latter [possibility] was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marijuana. The trial judge rejected the instruction because it suggested that “absolutely, positively, he has to know that it’s there.” The court said, “I think, in this case, it’s not too sound an instruction because we have evidence that if the jury believes it, they’d be justified in finding he actually didn’t know what it was he didn’t because he didn’t want to find it.”

[Instead,] the court told the jury that the government must prove beyond a reasonable doubt that the defendant “knowingly” brought the marihuana into the United States and that he “knowingly” possessed the marihuana… The court continued:

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, “One with a deliberate antisocial purpose in mind . . . may deliberately ‘shut his eyes’ to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having ‘knowledge’ of the facts as they are ultimately discovered to be.” … Professor Glanville Williams states, on the basis both English and American authorities, “To the requirement of actual knowledge there is one strictly limited exception. . . . (T)he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.”

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one “knows” facts of which he is less than absolutely certain. To act “knowingly,” therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, “positive” knowledge is not required.

This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” …

…There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved “deliberate ignorance” instructions in prosecutions under 21 U.S.C. s 841(a)… Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term “knowingly” in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the “cluster of ideas” attached to such a familiar term of art. Morissette v. United States (1952)….

Appellant’s narrow interpretation of “knowingly” is inconsistent with the Drug Control Act’s general purpose to deal more effectively “with the growing menace of drug abuse in the United States.” Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing….

It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant’s interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.

It begs the question to assert that a “deliberate ignorance” instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term “knowingly” in the statute. If it means positive knowledge, then, of course, nothing less will do. But if “knowingly” includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.

It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.” [G. Williams, supra.] In the language of the instruction in this case, the government must prove, “beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth.”

… The conviction is affirmed.

ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

…At the outset, it is arguable that the “conscious purpose to avoid learning the truth” instruction is inherently inconsistent with the additional mens rea required for [841(a), intent to distribute]. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it. In any event, we would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.

… The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts, the English doctrine:

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court.

In light of the Model Penal Code’s definition, the “conscious purpose” jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form “a conscious purpose to avoid learning the truth” unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.

The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he “actually believed” there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge that a reasonable man should have inspected the car and would have discovered what was hidden inside….

Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or “not actually aware” that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge. A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it….

Notes and questions on United States v. Jewell

  1. Notice that the first two paragraphs of Jewell address one issue – the “housekeeping chore” – and the rest of the opinion addresses a different question. (Let this remind you to resist the temptation to reduce each case to a single issue or “takeaway.”) What is the “housekeeping” issue? Use the first paragraph to refresh or refine your understanding of the term “general intent” crime. In what sense is the federal controlled substance statute here a “specific intent” crime rather than a general intent one?
  2. Notice also that the majority distinguishes between knowledge that one possesses a controlled substance and knowledge of the particular type of controlled substance that one possesses. What if a defendant is in possession of one illegal drug, but mistakenly believes that he has a different illegal drug? That is a question about a mistake of fact, and as you have seen in other contexts, whether a mistake of fact matters to liability depends on the mens rea requirements of the relevant statute. Which mental state does 841(a) require? Look carefully at the second paragraph of the Jewell majority opinion. (The next section of this chapter further explores the relevance of drug type and quantity.)
  3. Across jurisdictions, drug laws distinguish between “simple possession” (the offense charged in Booth, the first case in this chapter) and a more serious crime of possession with intent to distribute. Charles Jewell was charged with a federal “possession with intent to distribute” offense, but notice that this appellate opinion does not address the question whether Jewell did in fact intend to distribute marijuana. Why not? Is it possible to intend to distribute drugs without being certain that you have the drugs?
  4. When courts do consider whether evidence is sufficient to prove intent to distribute, they often focus on the quantity of drugs involved, the way the drugs were packaged, and any other items in the defendant’s possession that may suggest drug trafficking, such as a scale or a large amount of cash. If police seize a large quantity of drugs, it will be difficult for the defendant to avoid a distribution charge. But even when the total quantity of drugs is relatively small, prosecutors sometimes pursue and obtain distribution convictions. See, e.g., Cotton v. State, 686 S.E.2d 805 (Ct. App. Ga. 2009) (finding evidence sufficient to support conviction for possession with intent to distribute when police found four “nickel” bags of marijuana, with a total weight of 2.7 grams, and $60 in cash in defendant’s car).
  5. Consider carefully the distinctions between the actual jury instruction given in Jewell and the Model Penal Code instruction that the dissent would require. Would the evidence in this case have supported a conviction even under the MPC approach?
  6. The Jewell majority uses legislative purpose to argue for a broader reading of the statute, referring to “the Drug Control Act’s general purpose to deal more effectively ‘with the growing menace of drug abuse in the United States.’” Should the general concern to address the “menace of drug abuse” always lead to the broadest interpretations of drug laws? Such an interpretive principle would be the inverse of a rule of lenity – a rule of severity with regard to drug offenses.

Drug Offenses: The Relevance of Type and Quantity

Iowa Code Ann. 204.401(2) [recodified; update reference]

[I]t is unlawful for a person to create, deliver, or possess with intent to deliver … a simulated controlled substance….

STATE of Iowa, Appellee


Robert Eric FREEMAN, Appellant

Supreme Court of Iowa
450 N.W.2d 826

Jan. 24, 1990

McGIVERIN, Chief Justice.

The facts of this case are not disputed. The defendant, Robert Eric Freeman, agreed to sell a controlled substance, cocaine, to Keith Hatcher. Unfortunately for Freeman, Hatcher was cooperating with the government. Hatcher gave Freeman $200, and Freeman gave Hatcher approximately two grams of what was supposed to be cocaine. To everyone’s surprise, the “cocaine” turned out to be acetaminophen. Acetaminophen is not a controlled substance.

Freeman was convicted at a bench trial of delivering a simulated controlled substance with respect to a substance represented to be cocaine, in violation of Iowa Code section 204.401(2)(a). The sole question presented by Freeman’s appeal is whether he can be convicted of delivering a simulated controlled substance when, in fact, he believed he was delivering and intended to deliver cocaine….

I. The statutory framework. Iowa Code section 204.401(2) provides, in relevant part:

[I]t is unlawful for a person to create, deliver, or possess with intent to deliver … a simulated controlled substance….

The term “simulated controlled substance” is defined by Iowa Code section 204.101(27):

Simulated controlled substance ” means a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and which because of its nature, packaging, or appearance would lead a reasonable person to believe it to be a controlled substance.

(Emphasis added.) Violation of section 204.401(2) with respect to a simulated controlled substance represented to be cocaine is a class “C” felony. Iowa Code § 204.401(2)(a).

II. Scienter and the offense of delivery of a simulated controlled substance. Our cases indicate that knowledge of the nature of the substance delivered is an imputed element of section 204.401(1) offenses. See, e.g., State v. Osmundson (Iowa 1976) (knowledge an imputed element of offense of delivery of a controlled substance); Cf. State v. Duncan (Iowa 1987) (knowledge an imputed element of delivery of an imitation controlled substance under Iowa Code chapter 204A). Proof of such knowledge has been required to separate those persons who innocently commit the overt acts of the offense from those persons who commit the overt acts of the offense with scienter, or criminal intent.

The Iowa Code prohibits delivery of [actual] controlled substances and imitation controlled substances, as well as delivery of counterfeit substances, in language nearly identical to that prohibiting delivery of simulated controlled substances [emphasis added]…. Seizing upon the similarity of the statutory prohibitions, Freeman argues that he cannot be convicted of delivering a simulated controlled substance because he mistakenly believed he was delivering and intended to deliver an actual controlled substance.

We disagree. Freeman’s construction of section 204.401(2) would convert the offense of delivery of a simulated controlled substance into one requiring knowing misrepresentation of the nature of the substance delivered. The statute clearly does not require knowing misrepresentation of the nature of the substance delivered.

Reading sections 204.401(2) and 204.101(27) together shows that the gist of this offense is knowing representation of a substance to be a controlled substance and delivery of a noncontrolled substance, rather than knowing misrepresentation and delivery. As one court explained under similar circumstances, statutes like section 204.401(2) are designed “to discourage anyone from engaging or appearing to engage in the narcotics traffic rather than to define the contractual rights of the pusher and his victim….” People v. Ernst (Cal. 1975)…

Freeman’s mistaken belief regarding the substance he delivered cannot save him from conviction. Mistake of fact is a defense to a crime of scienter or criminal intent only where the mistake precludes the existence of the mental state necessary to commit the crime. See Model Penal Code § 2.04(2) (1962) (“Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.”). In this case, Freeman would not be innocent of wrongdoing had the situation been as he supposed; rather, he would be guilty of delivering a controlled substance. His mistake is no defense. The scienter required to hold him criminally responsible for committing the overt acts of the charged offense is present regardless of the mistake. Freeman knowingly represented to Hatcher that the substance he delivered was cocaine.

In conclusion, we hold that a person who delivers a substance that is not a controlled substance, but who knowingly represents the substance to be a controlled substance, commits the offense of delivery of a simulated controlled substance regardless of whether the person believed that the substance was controlled or not controlled.

Delivery of a simulated controlled substance is not a consumer fraud offense. Freeman attempted and intended to sell cocaine. The fact that Freeman was fooled as much as his customer is no defense to the charge in this case.

Notes and questions on State v. Freeman

  1. Do defendants convicted of drug offenses need to know which specific drug they have? As noted above in the discussion of Jewell, drug offenses typically require the defendant to know that he possesses “a controlled substance,” but the defendant need not know which particular controlled substance he possesses. Thus, a defendant who believes he possesses heroin, but actually possesses a substance that turns out to be cocaine, can be convicted of possession of cocaine even if the penalties for cocaine possession are more severe. See, e.g., United States v. Barbosa, 271 F.3d 438, 450-451 (3rd Cir. 2001). For further review of mistakes of fact, you could look back at United States v. Coffman in Chapter Five. As noted there, whether a mistake of fact is relevant to criminal liability depends on the mens rea requirement of the particular crime that is charged.
  2. State v. Freeman raises a slightly different issue from the confusion of cocaine and heroin: here the defendant thought that he possessed cocaine, but actually possessed something that was not a controlled substance at all. In many jurisdictions, this situation would lead to a charge of attempted possession of cocaine. (We consider attempt doctrine, including its application to drug offenses, in more detail in the next chapter.) In Iowa, though, the simulated controlled substance law makes it unnecessary to rely on attempt doctrine.
  3. The Freeman court refers to contract law claims, and to consumer fraud, to distinguish the Iowa simulated controlled substance offense from either of those areas of law. How do the underlying purposes of the simulated controlled substance law differ from those other types of law?
  4. The sentences for different types and amounts of controlled substances can vary widely. How do legislatures and other policymakers decide how to punish different types of narcotics? One of the most controversial criminalization choices of American drug law concerned different penalties for crack cocaine and powder cocaine, discussed in Chapter Three in relation to United States v. Armstrong. Until 2010, federal sentencing law used a 100:1 ratio under which a defendant would need 100 times as much powder cocaine to receive the same mandatory minimum sentence that was imposed for crack cocaine. Because crack cocaine use and distribution was more prevalent among Black Americans, while powder cocaine had higher portions of white users and distributors, this stark difference in sentences had a significant impact on the racial composition of the U.S. prison population. Defenders of the 100:1 ratio argued that crack was more dangerous than powder cocaine, but the evidence of greater danger was contested, and in any case it is unclear how anyone could establish that crack is 100 times more dangerous. In 2010, Congress adjusted the ratio but did not entirely eliminate the more severe penalties for crack. The current crack-powder ratio is about 18:1.
  5. Just as the Freeman court finds that the defendant need not know the exact nature of the substance he possessed, many courts find that defendants need not know the exact quantity of drugs to be convicted of possessing that amount. This approach is controversial, though, because sentences for drug crimes are typically linked to the quantity involved. In Whitaker v. People, 48 P.3d 555 (Co. 2002), the defendant was charged with possession of over 1000 grams of methamphetamine. Police had approached David Whitaker on a Greyhound bus in Colorado and asked to search a black bag near him. Whitaker denied ownership of the bag, but allowed police to search it. It contained 8.8 pounds of methamphetamine. Whitaker was convicted and sentenced to 20 years imprisonment based on the quantity of drugs. On appeal to the Colorado Supreme Court, he argued that the prosecution had failed to prove that he knew the quantity of drugs in the bag. The Colorado Supreme Court held that drug quantity was a sentencing factor, not an element of the offense. That distinction is important, because the prosecution’s burden of proof as outlined in Winship generally extends only to elements of the offense and not to sentencing factors. (There are caveats and exceptions, about which you can learn more in a sentencing or advanced criminal procedure course.) As a result, in Colorado a possession conviction does not require the defendant to know the quantity of drugs possessed. “Any amount of drugs, even less than a usable quantity, can support a conviction” under the state’s possession statute, the Whitaker court stated.
  6. Measuring drug quantity may seem like a scientific, empirical question, but this aspect of drug law has produced some noteworthy disputes. In Chapman v. United States, 500 U.S. 353 (1991), the Supreme Court considered a federal statute that imposed a five-year mandatory minimum sentence on a person convicted of possessing one gram or more of “a mixture or substance containing” LSD. Pure LSD doesn’t weigh very much, but the drug is typically sold mixed into a “carrier medium” such as blotter paper or sugar cubes. In Chapman, the defendants possessed only about 50 milligrams of LSD, but it was integrated into blotter paper that weighed about 5.7 grams. The defendants argued that their sentence should be based on the weight of the actual drug, not the drug plus the medium. The weights of different carriers vary widely, and to include the carrier could meant that those who possess large quantities of the pure substance are punished less than those who possess very small quantities of the substance in a carrier medium. The Court rejected this argument and held that the combined weight of the LSD and the carrier could be used to trigger the mandatory minimum.
  7. The quantity of drugs involved in an offense can also depend on enforcement choices. For example, law enforcement officials working undercover can ask to purchase, or offer to sell, a given amount of drugs in order to trigger particular sentencing consequences. Or undercover agents may stage multiple “controlled buys” in order to charge multiple counts rather than a single charge.

Check Your Understanding (7-2)

Gun Offenses

Gun possession offenses sometimes involve categorical bans of a particular type of weapon. For example, “assault weapons,” or certain semi-automatic weapons, were banned under a 1994 federal law. That law had a ten-year time limit, and Congress allowed it to lapse in 2004. But more frequently, gun laws do not involve categorical bans; instead, they specify certain categories of people who are not allowed to possess weapons. Persons with prior criminal convictions (or specified types of convictions) are frequently prohibited from weapons possession; other restricted categories include children and persons with identified mental health issues. Another fairly standard regulatory approach is to require a license for weapon possession, and to impose criminal sanctions on persons who possess guns without the requisite license or permit. The first case below involves a statute structured as a general ban on (unlicensed) weapons possession, but with exceptions for various categories of person, including correctional officers. Penal codes can be complicated, as this case illustrates: at least four different statutes are relevant to the resolution of this case.

N.Y. Penal Law § 265.02 [as of 1983; now revised]

A person is guilty of criminal possession of a weapon in the third degree when …

(4) [h]e possesses any loaded firearm….

N.Y. Penal Law § 265.20 Exemptions

[Section 265.02 and other sections] shall not apply to:

        • Possession of any of the weapons, instruments, appliances, or substances specified by…
        • (c) peace officers as defined by … the criminal procedure law.

N.Y. Crim. Pro. Ch. 966, §1.20(33) [as of 1970; repealed 1980]

[A peace officer includes]

… [a]n attendant, or an official, or guard of any state prison or any penal correctional institution….

(A fourth statute relevant to the next case is included within the judicial opinion.)

People of the State of New York



Court of Appeals of New York
507 N.E.2d 1068

April 2, 1987


The defense of mistake of law is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled … to carry a handgun without a permit as a peace officer.

…Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

… The revisors of New York’s Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:

Ҥ 15.20. Effect of ignorance or mistake upon liability.

* * *

“2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”

This section was added to the Penal Law … in 1965… When this provision was first proposed, commentators viewed the new language as codifying “the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an ‘official statement of the law.’ ” (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [1964]).

The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his “reasonable” interpretation of an “official statement” is enough to satisfy the requirements of subdivision (2) (a)….

The prosecution … counters defendant’s argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York’s official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:

“Section 2.04. Ignorance or Mistake.

* * *

“(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment” (emphasis added).

Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision… New York’s drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance….

It was early recognized that the “official statement” mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. “It seems obvious that society must rely on some statement of the law, and that conduct which is in fact ‘authorized’ … should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the official pronouncement–a questioning of authority that is itself undesirable” (Note, 64 Colum. L. Rev. at 1486 (emphasis added). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.

In the case before us, the underlying statute never in fact authorized the defendant’s conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. …[E]ven the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.

The “official statement” component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But the interpretation of the statute relied upon must be “officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.” …[N]one of the interpretations which defendant proffered meets the requirements of the statute….

It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, “rule out any defense based on mistake of law.” To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.

The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant’s own mind), mistake of law should not be available as an excuse….

We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal…. In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.

We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: “A statute … which is so indefinite that it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed….” (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 [1941]).

Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant’s construction of New York’s mistake of law defense statute. If defendant’s argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury…. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

Accordingly, the order of the Appellate Division should be affirmed.

HANCOCK, Jr., J., dissenting.

…The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20(2)(a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness or “choosing freely to do wrong”, our supposed man who has acted innocently and without any intent to do wrong should not be punished… Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim “ignorantia legis neminem excusat” finds its roots in Medieval law when the “actor’s intent was irrelevant since the law punished the act itself. …Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of intent [mens rea] and recognizing defenses based on the actor’s mental state…) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian–preferring the interests of society (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law) to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal…

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense… The utilitarian arguments for retaining the rule have been drawn into serious question but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. …This basic objection to the maxim “ignorantia legis neminem excusat” may have had less force in ancient times when most crimes consisted of acts which by their very nature were recognized as evil (malum in se). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the “common law fiction that every man is presumed to know the law has become indefensible in fact or logic.”…

With this background we proceed to a discussion of our disagreement with the majority’s construction of Penal Law § 15.20(2)(a)….

It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.

Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license. He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant’s motion before trial the court dismissed the indictment, holding that he was a peace officer as defined [by state law] and, therefore, exempted … from prosecution… [The dissent explained in a footnote that state law defined “peace officers” to include “correction officers of any state correction facility or of any penal correctional institution.”] The … Appellate Division reversed and reinstated the indictment, [holding that only State correction officers were exempted from prosecution under 265.02]…. [Defendant] was convicted and the Appellate Division has affirmed.

Defendant’s mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption [for] “peace officers” … and on his reading of the statutory definition for “peace officer” … as meaning a correction officer “of any penal correctional institution” (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a “peace officer”… This mistaken belief, based in good faith … is, defendant contends, the precise sort of “mistaken belief … founded upon an official statement of the law contained in … a statute or other enactment” which gives rise to a mistake of law defense under Penal Law § 15.20(2)(a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute’s meaning against him….

The majority, however, has accepted the People’s argument that to have a defense under Penal Law § 15.20 (2) (a) “a defendant must show that the statute permitted his conduct, not merely that he believed it did” (respondent’s brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People’s flat position is that “one’s mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense” ….

[That view] leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20(2)(a) only when his reading of the statute is correct–not mistaken. such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected

Finally, the majority’s disregard of the natural and obvious meaning of Penal Law § 15.20(2)(a) … amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute’s enactment. It is self-evident that in enacting Penal Law § 15.20(2) … the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned “ignorantia legis” common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant’s erroneous belief is founded on an “official statement of the law” ….

The majority construes the statute, however, so as to rule out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute’s enactment and resurrects the very rule which the Legislature rejected….

Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20(2)(a) should be read as if it were Model Penal Code § 2.04 (3)(b)(i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal, New York followed parts of the Model Penal Code provisions and rejected others….

…In respect to the defense based upon an actor’s reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar…. The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct. The defense is limited to an act in reliance on an official statement of law in a statute “afterward determined to be invalid or erroneous. The New York statute, in contrast, specifically permits the defense when the actor proceeds under “a mistaken belief” that his conduct does not “constitute an offense” when that “mistaken belief is founded upon an official statement of the law contained in … a statute” ….

Thus, the precise phrase in the Model Penal Code limiting the defense … to reliance on a statute “afterward determined to be invalid or erroneous” … is omitted from Penal Law § 15.20(2)(a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained….

As an alternate interpretation of Penal Law § 15.20(2)(a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts mala in se … “where specific intent is an element of the offense”… Again such construction is at odds with the plain wording of Penal Law § 15.20(2)(a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating “under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense.” There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita–i.e., “the vast network of regulatory offenses which make up a large part of today’s criminal law”–where reasons of policy and fairness call for a relaxation of the strict “ignorantia legis” maxim to permit a limited mistake of law defense.

…Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction….

We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man’s good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence “that punishment should be conditioned on a showing of subjective moral blameworthiness”….

…We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated. …

But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant’s circumstances should have a mistake of law defense. Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.

Notes and questions on Marrero

  1. Marrero is a complicated case! Don’t worry if it takes some time to make sense of it. Part of the difficulty is that there are multiple statutes at stake: a New York law that bans weapons possession without a special license, a different state law that exempts “peace officers” from the general ban on unlicensed weapons possession, still another state law that defines the term “peace officers,” and finally, a state statute that provides an affirmative defense for those who mistakenly believe that their conduct is not illegal, if the mistaken belief is “founded upon an official statement of law.” The first three statutes just listed are representative of one major aspect of American gun regulation: gun laws tend to identify categories of people who may, or (more often) may not, possess guns. In contrast to prohibitions of controlled substances, which are usually generally applicable to all persons, prohibitions of guns are often directed to specific groups, such as persons with felony convictions or persons with mental illness.
  2. The mistake of law arguments are where things get much more complicated. Julio Marrero mistakenly believed that he was a “peace officer” under New York law and thus permitted to carry a gun. But was his mistake “founded upon an official statement of law”? Under the majority’s approach, could any misunderstanding of a statute count as a belief “founded upon an official statement of law”? Under the dissent’s approach, is every misunderstanding of a statute “founded upon an official statement of law”?
  3. The dissent in Marrero noted in passing that the New Jersey had adopted a mistake of law defense “more liberal” than the Model Penal Code. In a footnote, the dissent elaborated: “In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: ‘(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.’” Would Marrero have been able to avoid conviction for weapons possession if the New Jersey mistake of law defense applied to him?
  4. The dissenting opinion refers to the “unusual facts of this case.” You can learn more of those unusual facts in a detailed student note published shortly after the decision: David De Gregorio, People v. Marrero and Mistake of Law, 54 Brook. L. Rev. 229 (1988). Julio Marrero was at a nightclub with his girlfriend when police arrived in response to a report of a man at the club carrying a pistol. One officer reportedly noticed a bulge under Marrero’s jacket and approached him with his own weapon drawn. (Marrero testified that he first became aware of the officers when he saw not one but three guns pointed at him; there were apparently only two arresting officers, and it is unclear whether there really were three guns aimed at Marrero.) Marrero moved toward the officers, possibly reaching for his own gun, and the officers then arrested him and seized his pistol. They found a second gun in Marrero’s girlfriend’s purse, and an imitation weapon in the possession of a friend of Marrero who was also present. Marrero testified that he regularly carried a gun because he feared for his life after being threatened by prisoners or former prisoners. He had taken several criminal justice courses at Hostos College in the Bronx, and had concluded that as a federal corrections officer he qualified as a “peace officer” under New York state law.

    Which of these facts, if any, do you think the dissent found “unusual”? Do any of the above facts make a difference to the way this case should have turned out, in your view?

  5. As noted in the introduction to this chapter, there is evidence that criminal regulations of guns have a disproportionate impact on persons of color. Disparities in other areas of law have contributed to an overrepresentation of persons of color among those who have criminal convictions, and this group is frequently banned from weapons possession. Moreover, police may simply be more likely to discover a weapon when it is possessed by a Black or brown person, since these groups are disproportionately targeted for police investigative activity. When a New York gun restriction was challenged before the Supreme Court recently, a group of Black defense lawyers filed an amicus brief, urging the Court to overturn the New York law due to its racially disproportionate impact. See Brief of the Black Attorneys of Legal Aid, et al, in New York State Rifle & Pistol Assoc. v. Bruen, 142 S. Ct. 2111 (2022).
  6. In other cases involving Second Amendment challenges to gun regulations, the Court has alluded to southern states’ selective disarmament of Black Americans after the Civil War as a reason to treat gun control laws with suspicion. McDonald v. City of Chicago, 561 U.S. 724 (2010). At the same time, the Court has made clear that the Second Amendment right to bear arms does not extend to persons with felony convictions. Under existing constitutional doctrine, a state could not directly prohibit gun possession only among a given racial group, but a felon-in-possession ban is acceptable even if it disproportionately impacts persons of color, so long as there is no proof of an intent to discriminate by race.

Check Your Understanding (7-3)

26 U.S.C. § 5861. Prohibited acts

It shall be unlawful for any person—

… d) to receive or possess a firearm which is not registered to him in the National Firearms and Transfer Record….

26 U.S.C. § 5845. Definitions

(a) Firearm.The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun …

(b) Machinegun.–The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

Harold E. STAPLES, III, Petitioner



Supreme Court of the United States
511 U.S. 600

Decided May 23, 1994

Justice THOMAS delivered the opinion of the Court.


The National Firearms Act (Act) imposes strict registration requirements on statutorily defined “firearms.” The Act includes within the term “firearm” a machinegun, and further defines a machinegun as “any weapon which shoots, … or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” Thus, any fully automatic weapon is a “firearm” within the meaning of the Act.[1] Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. Section 5861(d) makes it a crime, punishable by up to 10 years in prison, for any person to possess a firearm that is not properly registered.

Upon executing a search warrant at petitioner’s home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR–15 rifle. The AR–15 is the civilian version of the military’s M–16 rifle, and is, unless modified, a semiautomatic weapon. The M–16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M–16 parts are interchangeable with those in the AR–15 and can be used to convert the AR–15 into an automatic weapon. No doubt to inhibit such conversions, the AR–15 is manufactured with a metal stop on its receiver that will prevent an M–16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner’s rifle, however, had been filed away, and the rifle had been assembled with an M–16 selector switch and several other M–16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR–15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).

At trial, BATF agents testified that when the AR–15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered… Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR–15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove beyond a reasonable doubt that the defendant “knew that the gun would fire fully automatically.”

The District Court rejected petitioner’s proposed instruction and instead charged the jury as follows:

“The Government need not prove the defendant knows he’s dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation.” Tr. 465.

Petitioner was convicted and sentenced to five years’ probation and a $5,000 fine….


Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a “firearm” under the Act is a question of statutory construction. As we observed in Liparota v. United States (1985), “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Thus, we have long recognized that determining the mental state required for commission of a federal crime requires “construction of the statute and … inference of the intent of Congress.” United States v. Balint (1922).

The language of the statute, the starting place in our inquiry, provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that “[i]t shall be unlawful for any person … to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra. On the contrary, we must construe the statute in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence.” …[W]e have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.

According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government’s view, this case fits in a line of precedent concerning what we have termed “public welfare” or “regulatory” offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.

For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were “narcotics” within the ambit of the statute. … As we [later] explained…, Balint dealt with “a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing.”

Such public welfare offenses have been created by Congress, and recognized by this Court, in “limited circumstances.” Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.” Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements.

The Government argues that … all guns, whether or not they are statutory “firearms,” are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court’s instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a “firearm” in the ordinary sense of the term.

The Government seeks support for its position from our decision in United States v. Freed (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d). [A grenade is a type of “firearm” under the Act.] The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. …[W]e suggested that the Act “is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Grenades, we explained, “are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint.” But that reasoning provides little support for dispensing with mens rea in this case.

As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a “firearm” for purposes of the Act, but who knows only that he has a “firearm” in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory “firearm”; different elements of the same offense can require different mental states. Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades—that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a “firearm”), possession of which was not entirely “innocent” in and of itself. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.

…In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct.” In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a “food stamp can hardly be compared to a hand grenade.”

Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. In fact, in Freed we construed § 5861(d) under the assumption that “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that “one would hardly be surprised to learn that owning a gun is not an innocent act.” That proposition is simply not supported by common experience. Guns in general are not “deleterious devices or products or obnoxious waste materials,” that put their owners on notice that they stand “in responsible relation to a public danger.”

The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices…. But that an item is “dangerous,” in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades…. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon’s characteristics.

On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements. But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of American homes contain at least one firearm of some sort, and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.

If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed “dangerous” devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle’s emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.

Here, there can be little doubt that, as in Liparota, the Government’s construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their possession—makes their actions entirely innocent. …[I]n the Government’s view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun’s firing capabilities, if the gun turns out to be an automatic.

We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if … what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation….

The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years’ imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. …

Our characterization of the public welfare offense … hardly seems apt … for a crime that is a felony, as is violation of § 5861(d). After all, “felony” is, as we noted in distinguishing certain common-law crimes from public welfare offenses, “as bad a word as you can give to man or thing.” Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.

We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.


…We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items…. As we noted in Morissette: “Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.” We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.

Justice GINSBURG, with whom Justice O’CONNOR joins, concurring in the judgment.

 …The question before us is not whether knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun.

…The Nation’s legislators chose to place under a registration requirement only a very limited class of firearms, those they considered especially dangerous…. Only the third reading, then, suits the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity….

Justice STEVENS, with whom Justice BLACKMUN joins, dissenting.

To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it enacted the National Firearms Act (or Act). Because the Court’s addition to the text of 26 U.S.C. § 5861(d) is foreclosed by both the statute and our precedent, I respectfully dissent.

The Court is preoccupied with guns that “generally can be owned in perfect innocence.” This case, however, involves a semiautomatic weapon that was readily convertible into a machinegun—a weapon that the jury found to be “a dangerous device of a type as would alert one to the likelihood of regulation.” These are not guns “of some sort” that can be found in almost “50 percent of American homes.” [Only about 15 percent of all the guns in the United States are semiautomatic.] They are particularly dangerous—indeed, a substantial percentage of the unregistered machineguns now in circulation are converted semiautomatic weapons.

The question presented is whether the National Firearms Act imposed on the Government the burden of proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device sufficient to alert him to regulation, but also that he knew it had all the characteristics of a “firearm” as defined in the statute….

The National Firearms Act unquestionably is a public welfare statute. United States v. Freed (1971) (holding that this statute “is a regulatory measure in the interest of the public safety”). Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry. To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of some of these offenses—including the one at issue here—contains no knowledge requirement.

…[E]ven assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun. The “character and nature” of such a weapon is sufficiently hazardous to place the possessor on notice of the possibility of regulation. No significant difference exists between imposing upon the possessor a duty to determine whether such a weapon is registered, Freed, and imposing a duty to determine whether that weapon has been converted into a machinegun. …

The enforcement of public welfare offenses always entails some possibility of injustice. Congress nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it reasonable to presume that he either knows, or should know, whether those products conform to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to justify strict enforcement against those who are merely guilty of negligent, rather than willful, misconduct. …

This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns. Anyone in possession of such a weapon is “standing in responsible relation to a public danger.” In the National Firearms Act, Congress determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous to alert persons who knowingly possess them to the probability of stringent public regulation. The jury’s finding that petitioner knowingly possessed “a dangerous device of a type as would alert one to the likelihood of regulation” adequately supports the conviction.

Accordingly, I would affirm the judgment of the Court of Appeals.

Notes and questions on Staples

  1. The Staples Court starts its analysis with a reiteration of a preference for mens rea requirements over strict liability: the Court says that the fact that the statute does not specifically mention a mens rea standard should not be taken to indicate that Congress intended to dispense with a mens rea requirement. But did the government’s interpretation of the statute, or the interpretation used by the trial court, dispense with a mens rea requirement? In other words, did the trial court treat this federal offense as a “strict liability” offense?
  2. To answer the previous question, it may help to think in more detail about this one: what counts as a “strict liability” offense? Think about the mens rea question in Staples in relation to the mens rea issues discussed in the drug cases above. Drug possession statutes typically require “knowing possession,” but what specific knowledge is required? As you have seen, courts typically find the mental state aspect of drug possession to be satisfied if the defendant has knowledge of possession of a controlled substance; the defendant need not know which particular controlled substance he or she possesses. Thus drug possession is not technically a strict liability offense, though it is sometimes characterized as such because the requisite knowledge (knowledge of possession of a controlled substance) is usually inferred from the circumstances of possession.

    Now consider Mr. Staples. He knew that he had a weapon. On his account, he did not know that the specific type of weapon – he did not know that it was an automatic weapon rather than a semiautomatic weapon. If the federal statute required knowledge that one possesses a weapon, but not knowledge of the specific type of weapon, would it be correct to call it a “strict liability offense”? In many situations, it may be more precise to speak of strict liability elements rather than strict liability offenses. One element of the federal crime is the fact that the gun involved is an automatic weapon. If this element is a strict liability element, then the defendant need not be aware of this fact in order to commit the offense. Even then, the overall offense may still involve some mens rea requirement, such as awareness that one possesses a gun of some type. A broader lesson here is that you should do mens rea analysis with respect to individual elements. For each act or attendant circumstance that is an element of the offense, ask, is there a given mental state that the defendant must hold with regard to this particular element?

  3. How does the Supreme Court distinguish United States v. Freed? What is the critical distinction between guns and grenades, in the Court’s analysis?
  4. The Staples majority opinion says that “guns generally can be owned in perfect innocence,” and also that “owning a gun is usually licit and blameless conduct.” Of course, whether one may own a gun (or more narrowly, a “firearm”) innocently or blamelessly is within Congress’s power to decide, if Congress has the power to criminalize gun possession or firearm possession. When Staples was decided in 1994, the prevailing interpretation of the Second Amendment was that it protected a right to bear arms as part of a state militia, but not an individual right to bear arms. Fourteen years after Staples, the Court declared for the first time that the Second Amendment protected an individual right to bear arms. See District of Columba v. Heller, 554 U.S. 570 (2008). Justice Thomas, the author of the majority opinion in Staples, was one member of the five-Justice majority in Heller. To what degree does the analysis in Staples depend on an underlying assumption that gun ownership is constitutionally protected conduct?
  5. Harold E. Staples III, the defendant in Staples, appeared often in the local news in Oklahoma – and in the courts. He served as “the key prosecution witness” in a 1989 federal prosecution of a man accused of illegal wiretapping. He gained further local notoriety when he allowed the Ku Klux Klan to hold rallies on the land where he lived, telling a local newspaper that he wouldn’t send his children away for the rally, and stating, “These are absolutely nice people… [T]hey won’t hear anything offensive coming from these people.” Almost twenty years after the Supreme Court issued the decision you’ve just read, Staples was charged again, this time with conspiracy to distribute methamphetamine. He died while those charges were still pending. See David Harper, Newsmaker in Local Courtrooms Dies, Tulsa World, June 12, 2013, page A14.

Check Your Understanding (7-4)

Guns, Drugs, and Mass Incarceration

As noted in the introduction to this chapter, experts have debated the role of drug and gun offenses in producing mass incarceration. Of course, to determine what has caused mass incarceration, we need to know what that term means. Sometimes “mass incarceration” is used to describe the very high incarceration rates that have existed in the United States for several decades now. In other instances, “mass incarceration” or a related term such as “hyper-incarceration” is used to signify the racial impact of more severe sentences. Whether we are thinking of the overall increase in American prisoners or the racial patterns in that increase, penalties for drug and gun offenses seem to be an important part of the explanation. Drug and gun crimes offer an opportunity to reflect on the interaction of criminalization, enforcement, and adjudication decisions, and to add to this picture a closer look at the importance of sentencing decisions.

After criminalization, enforcement, and adjudication decisions have been made – for example, marijuana possession has been defined as criminal, police have identified and arrested a particular person for this offense, and the person has pled guilty – there often remains the question of punishment: how (much) should the defendant be punished? Depending on the jurisdiction, the appropriate sentence could be a question within the discretion of the trial court, or it could be defined by “sentencing guidelines” or by statute. When a statute sets a required sentence and does not leave judges the authority to impose a different sentence, the sentence is said to be “mandatory.” Some of the most severe “mandatory minimum” sentences arise in the context of drug offenses, gun offenses, or the potent combination of drugs and guns. The next case involves a challenge to one of the most significant federal “mandatory minimums.”

18 U.S.C. § 924(c) [as of 1994; later amended]

(1)(A) Whoever, during and in relation to any crime of violence or drug trafficking crime … for which he may be prosecuted in a court of the United States, uses or carries a firearm… shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, [be sentenced to imprisonment for five years]. …

(1)(C) In the case of a second or subsequent conviction under this subsection, the person shall … be sentenced to a term of imprisonment of not less than 25 years…

UNITED STATES of America, Plaintiff


Weldon ANGELOS, Defendant

United States District Court, D. Utah, Central Division
345 F. Supp. 2d 1227

Nov. 16, 2004

CASSELL, District Judge.

Defendant Weldon Angelos stands now before the court for sentencing. He is a twenty-four–year-old first offender who is a successful music executive with two young children. Because he was convicted of dealing marijuana and related offenses, both the government and the defense agree that Mr. Angelos should serve about six to eight years in prison. But there are three additional firearms offenses for which the court must also impose sentence. Two of those offenses occurred when Mr. Angelos carried a handgun to two $350 marijuana deals; the third when police found several additional handguns at his home when they executed a search warrant. For these three acts of possessing (not using or even displaying) these guns, the government insists that Mr. Angelos should essentially spend the rest of his life in prison. Specifically, the government urges the court to sentence Mr. Angelos to a prison term of no less than 61 ½ years—six years and a half (or more) for drug dealing followed by 55 years for three counts of possessing a firearm in connection with a drug offense. In support of its position, the government relies on a statute—18 U.S.C. § 924(c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and twenty-five years for each subsequent time. Under § 924(c), the three counts produce 55 years of additional punishment for carrying a firearm.

The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55–year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal “three strikes” provision. At the same time, however, this 55–year additional sentence is decreed by § 924(c).

The court’s role in evaluating § 924(c) is quite limited. The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the 55-year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriate criminal penalties. Under the controlling case law, the court must find either that a statute has no conceivable justification or is so grossly disproportionate to the crime that no reasonable argument can be made its behalf. If the court is to fairly apply these precedents in this case, it must reject Mr. Angelos’ constitutional challenges. Accordingly, the court sentences Mr. Angelos to a prison term of 55 years and one day, the minimum that the law allows.

To correct what appears to be an unjust sentence, the court also calls on the President—in whom our Constitution reposes the power to correct unduly harsh sentences—to commute Mr. Angelos’ sentence to something that is more in accord with just and rational punishment. In particular, the court recommends that the President commute Mr. Angelos’ sentence to no more than 18 years in prison, the average sentence that the jurors in this case recommended. In addition, the court also calls on Congress to modify § 924(c) so that its harsh provisions for 25–year multiple sentences apply only to true recidivist drug offenders—those who have been sent to prison and failed to learn their lesson. Because of the complexity of these conclusions, the court will set out their basis at some length.

I. Factual Background

Weldon Angelos is twenty-four years old. He was born on July 16, 1979, in Salt Lake City, Utah. He was raised in the Salt Lake City area by his father … with only minimal contact with his mother. Mr. Angelos has two young children … six–year-old Anthony and five-year-old Jessie. Before his arrest Mr. Angelos had achieved some success in the music industry. He started Extravagant Records, a label that produces rap and hip hop music. He had worked with prominent hip hop musicians, including Snoop Dogg, on the “beats” to various songs and was preparing to record his own album.

The critical events in this case are three “controlled buys” of marijuana by a government informant from Mr. Angelos. On May 10, 2002, Mr. Angelos met with the informant, Ronnie Lazalde, and arranged a sale of marijuana. On May 21, 2002, Mr. Angelos completed a sale of [eight ounces] of marijuana to Lazalde for $350. Lazalde observed Mr. Angelos’ Glock pistol by the center console of his car. This drug deal formed the basis for the first § 924(c) count.

During a second controlled buy with Lazalde, on June 4, 2002, Mr. Angelos lifted his pant leg to show him the Glock in an ankle holster. Lazalde again purchased approximately eight ounces of marijuana for $350. This deal formed the basis for the second § 924(c) count.

A third controlled buy occurred on June 18, 2002, with Mr. Angelos again selling Lazalde eight ounces of marijuana for $350. There was no direct evidence of a gun at this transaction….

On November 15, 2003, police officers arrested Mr. Angelos at his apartment pursuant to a warrant. Mr. Angelos consented to a search. The search revealed a briefcase which contained $18,040, a handgun, and two opiate suckers. [Police also found] approximately three pounds of marijuana [and] two other guns in a locked safe…. Searches at other locations, including the apartment of Mr. Angelos’ girlfriend, turned up several duffle bags with marijuana residue, two more guns, and additional cash.

The original indictment issued against Mr. Angelos contained three counts of distribution of marijuana, one § 924(c) count for the firearm at the first controlled buy, and two other lesser charges. Plea negotiations began between the government and Mr. Angelos. On January 20, 2003, the government told Mr. Angelos, through counsel, that if he pled guilty to the drug distribution count and the § 924(c) count, the government would agree to drop all other charges, not supersede the indictment with additional counts, and recommend a prison sentence of 15 years. The government made clear to Mr. Angelos that if he rejected the offer, the government would obtain a new superseding indictment adding several § 924(c) counts that could lead to Mr. Angelos facing more than 100 years of mandatory prison time. In short, Mr. Angelos faced the choice of accepting 15 years in prison or insisting on a trial by jury at the risk of a life sentence. Ultimately, Mr. Angelos rejected the offer and decided to go to trial. The government then obtained two superseding indictments, eventually charging twenty total counts, including five § 924(c) counts which alone carried a potential minimum mandatory sentence of 105 years. The five § 924(c) counts consisted of two counts for the Glock seen at the two controlled buys, one count for three handguns found at his home, and two more counts for the two guns found at the home of Mr. Angelos’ girlfriend.

Perhaps recognizing the gravity of the situation, Mr. Angelos tried to reopen plea negotiations…. The government refused his offer, and the case proceeded to trial. The jury found Mr. Angelos guilty on sixteen counts, including three § 924(c) counts: two counts for the Glock seen at the two controlled buys and a third count for the … handguns at Mr. Angelos’ home. The jury found him not guilty on three counts—including the two additional § 924(c) counts….

Mr. Angelos’ sentence is presumptively governed by the Federal Sentencing Guidelines…. The prescribed Guidelines’ sentence for Mr. Angelos for everything but the § 924(c) counts is 78 to 97 months. After the Guideline sentence is imposed, however, the court must then add the § 924(c) counts. Section 924(c) prescribes a five-year mandatory minimum for a first conviction, and 25 years for each subsequent conviction…. In addition, § 924(c) mandates that these 55 years run consecutively to any other time imposed. As a consequence, the minimum sentence that the court can impose on Mr. Angelos is 61 ½ years—6 ½ years (78 months) for the 13 counts under the Guidelines and 55 consecutive years for the three § 924 convictions. The federal system does not provide the possibility of parole, but instead provides only a modest “good behavior” credit of approximately 15 percent of the sentence. Assuming good behavior, Mr. Angelos’ sentence will be reduced to “only” 55 years, meaning he could be released when he is 78 years old.

Mr. Angelos [argues] that § 924(c) is unconstitutional as applied to him, either because the additional 55–year sentence is irrational punishment that violates equal protection principles or is cruel and unusual punishment that violates the Cruel and Unusual Punishment Clause….

II. Legislative History and Judicial Interpretation of § 924(c)

Before turning to Mr. Angelos’ specific challenges to § 924(c), it is helpful to understand the history of the statute. [The original statute] was proposed and enacted in a single day as an amendment to the Gun Control Act of 1968 enacted following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy. Congress intended the Act to address the “increasing rate of crime and lawlessness and the growing use of firearms in violent crime.” Because § 924(c) was offered as a floor amendment, there are no congressional hearings or committee reports regarding its original purpose….

As originally enacted, § 924(c) gave judges considerable discretion in sentencing and was not nearly as harsh as it has become. … In the 36 years since its passage, the penalties attached to § 924(c) have been made continually harsher either by judicial interpretation or congressional action.… [I]f the original version of § 924(c) governed Mr. Angelos’ sentencing, the court could impose three separate one-year enhancements, adding a total of three years to his sentence. However, after 36 years of judicial interpretation and congressional modifications, the court is now left with a version of § 924(c) that requires a sentence of 55 years on top of a tough Guidelines sentence for drug dealing.

III. Mr. Angelos Equal Protection Challenge to the Statute

Mr. Angelos first contends that 18 U.S.C. § 924(c) makes arbitrary classifications and irrationally treats him far more harshly than criminals guilty of other much more serious crimes. He raises this claim as an equal protection challenge. …Under equal protection principles, the court’s review is quite limited. …[U]nless a law infringes upon a fundamental right or classifies along suspect lines such as race, the court’s review is limited to determining whether there is a rational basis for the law.

… Before turning to the merits … it is important to understand the length of the sentence that the government is asking the court to impose. [Because Angelos is 24 and] [t]he average life expectancy for males in the United States is about 74 years of age[,] … if the court imposes the sentence sought by the government, Mr. Angelos will effectively receive a sentence of life.

… [Section] 924(c) imposes punishment in this case far beyond that called for by the congressionally-created expert agency on sentencing, by the jurors who heard the evidence, by the Utah state system, or by any of the other state systems. If the court is to take seriously the directive that it should impose “just punishment” with its sentences, then it should impose sentences that are viewed as appropriate by the citizens of this state and of this country. The court concludes that placing Mr. Angelos in prison for 61 ½ years is not “just punishment” for his crimes. This factor suggests the irrationality of § 924(c).

… Mr. Angelos [also] contends that his § 924(c) sentence is not only unjust but also irrational when compared to the punishment imposed for other more serious federal crimes. … In evaluating [these claims], the court starts from the premise that Mr. Angelos committed serious crimes. Trafficking in illegal drugs runs the risk of ruining lives through addiction and the violence that the drug trade spawns. As the government properly argued, when a defendant engages in a drug-trafficking operation and “carries and possesses firearms to aid in that venture, as was the case here, the actual threat of violence always exists, even it if does not actually occur.”83 But do any of these general rationales provide a rational basis for punishing the potential violence which § 924(c) is meant to deter more harshly than actual violence that harms a victim in its wake? In other words, is it rational to punish a person who might shoot someone with a gun he carried far more harshly than the person who actually does shoot or harm someone?

As applied in this case, the classifications created by § 924(c) are simply irrational. Section 924(c) imposes on Mr. Angelos a sentence 55 years or 660 months. Added to the minimum 78–month Guidelines sentence for a total sentence of 738 months, Mr. Angelos is facing a prison term which more than doubles the sentence of, for example, an aircraft hijacker (293 months), a terrorist who detonates a bomb in a public place (235 months), a racist who attacks a minority with the intent to kill and inflicts permanent or life-threatening injuries (210 months), a second-degree murderer, or a rapist….

… Amazingly, Mr. Angelos’ sentence under § 924(c) is still far more severe than criminals who committed, for example, three aircraft hijackings, three second-degree murders, three kidnappings, or three rapes…. Mr. Angelos will receive a longer sentence than any three-time criminal, with the sole exception of a marijuana dealer who shoots three people. The irrationality of these differences is manifest and can be objectively proven. In the Eighth Amendment context, the Supreme Court has instructed that “[c]omparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender.” In contrast to the serious violent felonies listed [above], the crimes committed by Mr. Angelos had the potential for violence, but no actual violence occurred. This is not to say that trafficking in illegal drugs is somehow a non-violent offense. Indeed, in Harmelin, Justice Kennedy quite properly called such an assertion “false to the point of absurdity.” Harmelin involved the potential distribution of approximately 32,500 doses of cocaine, a highly addictive drug that was linked to many of the homicides in Detroit. Justice Kennedy’s concurrence equated the crime in Harmelin with “felony murder without specific intent to kill.”

In this case, however, Mr. Angelos will be completely punished for his marijuana trafficking by the 78–97 month Guidelines sentence he receives… Section 924(c) punishes Angelos more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims (e.g., aircraft hijacking, second-degree murder, racist assaults, kidnapping, and rape). This factor, therefore, also suggests the irrationality of § 924(c).

Mr. Angelos also argues that § 924(c) is irrational in failing to distinguish between the recidivist and the first-time offender. Section 924(c) increases penalties for a “second or subsequent conviction under this subsection.” This language can be interpreted in two different ways. One construction would be that an offender who is convicted of a § 924(c) violation, serves his time, and then commits a subsequent violation is subject to an enhanced penalty. This was the construction that the Tenth Circuit (among other courts) originally gave to the statute.

…. In 1993 in Deal v. United States, the Supreme Court adopted [a more expansive] construction, [allowing] the “second or subsequent” language in § 924(c) to apply … to [a] defendant who is convicted of multiple § 924(c) counts in the same proceeding stemming from a single indictment. The Court concluded (over the dissents of three Justices) that the unambiguous phrase “subsequent conviction” in the statute permitted no distinction between the time at which the convictions took place. In addition, all time imposed for each § 924(c) count must run consecutively to any other sentence. This is what is known as “count stacking.”

When multiple § 924(c) counts are stacked on top of each other, they produce lengthy sentences that fail to distinguish between first offenders (like Mr. Angelos) and recidivist offenders. … Other true recidivist statutes do not operate this way. Instead, they graduate punishment (albeit only roughly) between first offenders and subsequent offenders….

For the reasons outlined in the previous section, § 924(c) imposes unjust punishment and creates irrational classifications between different offenses and different offenders. To some, this may seem like a law professor’s argument—one that may have some validity in the classroom but little salience in the real world. After all, the only issue in this case is the extent of punishment for a man justly convicted of serious drug trafficking offenses. So what, some may say, if he spends more years in prison than might be theoretically justified? It is common wisdom that “if you can’t do the time, don’t do the crime.”

The problem with this simplistic position is that it overlooks other interests that are inevitably involved in the imposition of a criminal sentence. For example, crime victims expect that the penalties the court imposes will fairly reflect the harms that they have suffered. When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract “war on drugs.”

… Another reason for concern is that the unjust penalties imposed by § 924(c) can be expected to attract public notice…. Perhaps in the short term, no ill effects will come from the difference between public expectations and actual sentences. But in the longer term, the federal criminal justice system will suffer. Most seriously, jurors may stop voting to convict drug dealers in federal criminal prosecutions if they are aware that unjust punishment may follow. It only takes a single juror who is worried about unjust sentencing to “hang” a jury and prevent a conviction. …

Justifications for § 924(c)

Given these many problems with § 924(c) as applied to this case—its imposition of unjust punishment, its irrational classifications between offenses and offenders, and its demeaning of victims of actual criminal violence—what can be said on behalf of the statute? The Sentencing Commission has catalogued the six rationales that are said to undergird mandatory sentencing schemes….

(1) Assuring “just” (i.e. appropriately severe) punishment, (2) elimination of sentence disparities, (3) judicial economies resulting from increased pressure on defendants to plead guilty, (4) stronger inducements for knowledgeable offenders to cooperate in the investigation of others, (5) more effective deterrence, and (6) more effective incapacitation of the serious offender.

 …[In this case, the government has not relied on the first or second rationale identified above.] The government has also not advanced the third rationale—judicial economies resulting from increased pressure on defendants to plead guilty. Here again, it is possible to understand the government’s reluctance. While it is constitutionally permissible for the government to threaten to file enhanced charges against a defendant who fails to plead guilty, there is always the nagging suspicion that the practice is unseemly. In this case, for example, the government initially offered Mr. Angelos a plea bargain in which he would receive a fifteen-year-sentence under one § 924(c) count. When he had the temerity to decline, the government filed superseding indictments adding four additional § 924(c) counts. So far as the court can determine, the superseding indictment rested not on any newly-discovered evidenced but rather solely on the defendant’s unwillingness to plead guilty. …[I]t is understandable that the government would not want to publicly defend § 924(c) with the plea-inducing argument, even though given the realities of overworked prosecutors this may provide a true justification for the statute. Nor has the government argued that § 924(c) is needed to provide incentives for drug traffickers to inform on others in their organization. Instead, the rationale advanced by government is deterrence and incapacitation: the draconian provisions of § 924(c) are necessary to deter drug dealers from committing crimes with those firearms and to prevent Mr. Angelos from doing so in the future.

The deterrence argument rests on a strong intuitive logic. Sending a message to drug dealers that they will serve additional time in prison if they are caught with firearms may lead some to avoid firearms entirely and others to leave their firearms at home…. Generally criminologists believe that an increase in prison populations will reduce crime through both a deterrent and incapacitative effect. The consensus view appears to be that each 10% increase in the prison population produces about a 1% to 3% decrease in serious crimes. … While offenders “substituted” into less harmful property crimes, the overall reduction in crime was significant. While no specific study has examined § 924(c), it is reasonable to assume—and Congress is entitled to assume—that it has prevented some serious drug and firearms offenses.

The problem with the deterrence argument, however, is that it proves too much. A statute that provides mandatory life sentences for jaywalking or petty theft would, no doubt, deter those offenses. But it would be hard to view such hypothetical statutes as resting on rational premises. Moreover, a mandatory life sentence for petty theft, for example, would raise the question of why such penalties were not in place for aircraft hijacking, second-degree murder, rape, and other serious crimes. Finally, deterrence comes at a price. Given that holding a person in federal prison costs about $23,000 per year, the 61–year–sentence the court is being asked to impose in this case will cost the taxpayers (even assuming Mr. Angelos receives good time credit and serves “only” 55–years) about $1,265,000. Spending more than a million dollars to incarcerate Mr. Angelos will prevent future crimes by him and may well deter some others from being involved with drugs and guns. But that money could also be spent on other law enforcement or social programs that in all likelihood would produce greater reductions in crime and victimization.

If the court were to evaluate these competing tradeoffs, it would conclude that stacking § 924(c) counts on top of each other for first-time drug offenders who have merely possessed firearms is not a cost-effective way of obtaining deterrence. It is not enough to simply be “tough” on crime. Given limited resources in our society, we also have to be “smart” in the way we allocate our resources. But these tradeoffs are the subject of reasonable debate. It is not the proper business of the court to second-guess the congressional judgment that § 924(c) is a wise investment of resources. Instead, in conducting rational basis review of the statute, the court is only to determine whether “any ground can be conceived to justify [the statutory scheme] as rationally related to a legitimate government interest.” “Where there are ‘plausible reasons’ for Congress’ action, [the court’s] inquiry is at an end.” …

Accordingly, the court reluctantly concludes that § 924(c) survives rational basis scrutiny. While it imposes unjust punishment and creates irrational classifications, there is a “plausible reason” for Congress’ action. As a result, this court’s obligation is to follow the law and to reject Mr. Angelos’ equal protection challenge to the statute.

IV. Cruel and Unusual Punishment

In addition to raising an equal protection argument, Mr. Angelos also argues that his 55–year sentence under § 924(c) violates the Eighth Amendment’s prohibition of cruel and unusual punishment. In this argument, he is joined in an amicus brief filed by a distinguished group of 29 former United States District Judges, United States Circuit Court Judges, and United States Attorneys, who draw on their expertise in federal criminal law and federal sentencing issues to urge that the sentence is unconstitutional as disproportionate to the offenses at hand.

Mr. Angelos and his supporting amici are correct in urging that controlling Eighth Amendment case law places an outer limit on punishments that can be imposed for criminal offenses, forbidding penalties that are grossly disproportionate to any offense. … [In] the … fractured 1991 decision in Harmelin v. Michigan, … the Court held that imposition of a life sentence without possibility of parole for possession of 650 grams of cocaine did not violate the Eighth Amendment. Then, last year, the Supreme Court confirmed that the gross disproportionality principle—“the precise contours of which are unclear”—is applicable to sentences for terms of years; that there was a “lack of clarity” in its precedents; that it had “not established a clear or consistent path for courts to follow;” and that the proportionality principles from Justice Kennedy’s Harmelin concurrence “guide our application of the Eighth Amendment.” …

In light of these controlling holdings, the court must engage in a proportionality analysis guided by factors outlined in Justice Kennedy’s Harmelin concurrence. In particular, the court must examine (1) the nature of the crime and its relation to the punishment imposed, (2) the punishment for other offenses in this jurisdiction, and (3) the punishment for similar offenses in other jurisdictions.

Before turning to these Harmelin factors, it is important to emphasize that the criminal conduct at issue is solely that covered by the three § 924(c) counts. Mr. Angelos will be fully and appropriately punished for all other criminal conduct from the sentence on these other counts. Thus, the proportionality question … boils down to whether the 55–year sentence is disproportionate to the offense of carrying or possessing firearms three times in connection with dealing marijuana.

A. Mr. Angelos Offenses and the Contemplated Penalty

The first Harmelin factor requires the court to compare the seriousness of the three § 924(c) offenses to the harshness of the contemplated penalty to determine if the penalty would be grossly disproportionate to such offenses. In weighing the gravity of the offenses, the court should consider the offenses of conviction and the defendant’s criminal history, as well as “the harm caused or threatened to the victim or society, and the culpability of the offender.” Simply put, “[d]isproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender.”

The criminal history in this case is easy to describe. Mr. Angelos has no prior adult criminal convictions and is treated as a first-time offender under the Sentencing Guidelines.

The sentence-triggering criminal conduct in this case is also modest. Here, on two occasions while selling small amounts of marijuana, Mr. Angelos possessed a handgun under his clothing, but he never brandished or used the handgun. … Mr. Angelos did not engage in force or violence, or threats of force or violence, in furtherance of or in connection with the offenses for which he has been convicted. No offense involved injury to any person or the threat of injury to any person. It is well-established that crimes marked by violence or threat of violence are more serious and that the absence of direct violence affects the strength of society’s interest in punishing a particular criminal.

… Comparing a recommended sentence of two years to the 55–year enhancement the court must impose strongly suggests not merely disproportionality, but gross disproportionality.

B. Comparison to Penalties for Other Offenses

The next Harmelin factor requires comparing Mr. Angelos’ sentence with the sentences imposed on other criminals in the federal system. Generally, “[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” This factor points strongly in favor of finding that the sentence in this case is excessive. As shown … earlier in this opinion, Mr. Angelos will receive a far longer sentence than those imposed in the federal system for such major crimes as aircraft hijacking, second-degree murder, racial beating inflicting life-threatening injuries, kidnapping, and rape. Indeed, Mr. Angelos will receive a far longer sentence than those imposed for three aircraft hijackings, three second-degree murders, three racial beatings inflicting life-threatening injuries, three kidnappings, and three rapes….

C. Comparison to Other Jurisdictions

The final Harmelin factor requires the court to examine “sentences imposed for the same crime in other jurisdictions.” Evaluating this factor is also straightforward. Mr. Angelos sentence is longer than he would receive in any of the fifty states. The government commendably concedes this point in its brief, pointing out that in Washington State Mr. Angelos would serve about nine years and in Utah would serve about five to seven years. Accordingly, the court finds that the third factor is satisfied.

D. Application of the Harmelin Factors in Light of Davis

Having analyzed the three Harmelin factors, the court believes that they lead to the conclusion that Mr. Angelos’ sentence violates the Eighth Amendment. But before the court declares the sentence unconstitutional, there is one last obstacle to overcome. The court is keenly aware of its obligation to follow precedent from superior courts—specifically the Tenth Circuit and, of course, the Supreme Court. The Supreme Court has considered one case that might be regarded as quite similar to this one. In Hutto v. Davis (1982), the Supreme Court held that two consecutive twenty-year sentences—totaling forty years—for possession of nine ounces of marijuana said to be worth $200 did not violate the Eighth Amendment. If Davis remains good law, it is hard see how the sentence in this case violates the Eighth Amendment. Here, Mr. Angelos was involved in at least two marijuana deals involving $700 and approximately sixteen ounces (one pound) of marijuana. Perhaps currency inflation could equate $700 today with $200 in the 1980’s. But as a simple matter of arithmetic, if 40 years in prison for possessing nine ounces marijuana does not violate the Eighth Amendment, it is hard to see how 61 years for distributing sixteen ounces (or more) would do so.

… [T]he Court apparently continues to view Davis as part of the fabric of the law. … In light of these continued references to Davis, the court believes it is it obligated to follow its holding here. …. Under Davis, Mr. Angelos’ sentence is not cruel and unusual punishment. Therefore, his Eighth Amendment challenge must be rejected.

V. Calculating the Sentence

With Mr. Angelos’ constitutional challenges to the 55–year sentence on § 924(c) counts resolved, the remaining issue before the court is the sentence to be imposed on the other counts…. If the sentence on these thirteen counts was the only sentence that Mr. Angelos would serve, a sentence of about 78–97 months might well be appropriate. But the court cannot ignore the reality that Mr. Angelos will also be sentenced to 55 years on the § 924(c) counts, far in excess of what is just punishment for all of his crimes. In light of this 55–year sentence, and having considered all of the relevant factors listed in the Sentencing Reform Act, the court will impose a sentence of one day in prison for all offenses other than the § 924(c) counts. Lest anyone think that this is a “soft” sentence, in combination with the § 924(c) counts, the result is that Mr. Angelos will not walk outside of prison until after he reaches the age of 70….

VI. Recommendations to Other Branches of Government

Having disposed of the legal arguments in this case, it seems appropriate to make some concluding, personal observations. I have been on the bench for nearly two-and-half years now. During that time, I have sentenced several hundred offenders under the Sentencing Guidelines and federal mandatory minimum statutes. By and large, the sentences I have been required to impose have been tough but fair. In a few cases, to be sure, I have felt that either the Guidelines or the mandatory minimums produced excessive punishment. But even in those cases, the sentences seemed to be within the realm of reason.

This case is different. It involves a first offender who will receive a life sentence for crimes far less serious than those committed by many other offenders—including violent offenders and even a murderer—who have been before me. For the reasons explained in my opinion, I am legally obligated to impose this sentence. But I feel ethically obligated to bring this injustice to the attention of those who are in a position to do something about it.


The 55–year sentence mandated by § 924(c) in this case appears to be unjust, cruel, and irrational. But our constitutional system of government requires the court to follow the law, not its own personal views about what the law ought to be. Perhaps the court has overlooked some legal point, and that the appellate courts will find Mr. Angelos’ sentence invalid. But applying the law as the court understands it, the court sentences Mr. Angelos to serve a term of imprisonment of 55 years and one day. The court recommends that the President commute this unjust sentence and that the Congress modify the laws that produced it. The Clerk’s Office is directed to forward a copy of this opinion with its commutation recommendation to the Office of Pardon Attorney and to the Chair and Ranking Member of the House and Senate Judiciary Committees.

Notes and questions on Angelos

  1. Judge Paul Cassell, the author of the opinion you’ve just read, argued that a 55-year sentence for this offender was unjust, cruel, and irrational. But Judge Cassell imposed that sentence anyway. Why? A simple answer might be, the judge believed that the law required him to impose the sentence. If so, which law? Consider the different laws involved in this case. There is a federal statute, 18 U.S.C. § 924(c). There is also the federal constitution, which prohibits states from denying “equal protection” of law, and also prohibits “cruel and unusual punishments.” Why doesn’t the federal constitution prohibit the mandatory minimum sentence in this case, according to Judge Cassell?
  2. This case gives you a chance to think about the roles of different official decisionmakers in expanding America’s prison population. If Weldon Angelos were to spend his life in prison for a marijuana offense, which institutions or officials bear responsibility for that decision?
  3. Note the many contrasts that the court draws between “actual violence” and the offense for which Weldon Angelos is punished. For example, Judge Cassell writes, “When the sentence for actual violence inflicted on a victim is dwarfed by a sentence for carrying guns to several drug deals, the implicit message to victims is that their pain and suffering counts for less than some abstract ‘war on drugs.’” Just a few years after this decision, Judge Cassell resigned from the bench and returned to law school teaching. He said that he wanted to engage in more advocacy than a judicial post allowed, and that the Angelos case was one factor in his decision. However, Cassell’s post-bench advocacy has focused primarily on victims’ rights, including the ability of victims to advocate for longer sentences. But notice also that some argue for severe penalties for gun crimes, or drug crimes, or drugs + gun crimes, precisely because they associate drugs and guns with violence. (Judge Cassell also concedes, “This is not to say that trafficking in illegal drugs is somehow a non-violent offense.”) This case invites us to think about what counts as “violence,” and the way that ideas about violence have shaped official decisions about what and who to punish, and how much punishment to impose.
  4. As it turned out, Weldon Angelos did not spend the rest of his life in prison. His case drew attention even at the trial stage; Judge Cassell’s opinion notes that 29 former federal prosecutors and judges filed a brief arguing that the mandatory sentence was unconstitutional. Celebrities (including Snoop Dogg) and others continued to advocate on behalf of Angelos even after he entered prison. After Angelos had served about 12 years, President Obama commuted his sentence, and Angelos was released in 2016. A commutation can shorten a sentence, but it does not reverse the underlying conviction. In December 2020, President Trump pardoned Angelos, suggesting that the injustice of his conviction and sentence are a rare point of bipartisan agreement in highly polarized times. Since his release, Angelos has worked as an advocate for clemency and criminal law reform. So many defendants, including defendants of color, have been imprisoned for long terms under § 924(c) that it is worth asking what made Angelos a distinctively sympathetic prisoner. Was it the lack of prior convictions? The image of Angelos as a family man, a devoted father of young children? Snoop Dogg?
  5. Weldon Angelos was eventually released, and Congress did eventually amend § 924(c). The statute still imposes lengthy mandatory minimums, but as of June 2022, the 25-year penalty for a “second or subsequent” violation applies only to a defendant whose first § 924(c) conviction became final before the subsequent violation took place. In other words, the amended law would not allow the “count stacking” that was used against Angelos, but it does enable prosecutors to threaten very severe sentences against anyone with a prior § 924(c) conviction. The new statutory text is reproduced below.

18 U.S.C. § 924 (as amended by First Step Act, effective June 25, 2022)

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime … for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall–

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

  1. [Fn. 1 by the Court:] As used here, the terms “automatic” and “fully automatic” refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are “machineguns” within the meaning of the Act. We use the term “semiautomatic” to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired.